Public Prosecutor v Yusof Bin Saruan (M-05(SH)-436-09/2017)

(a) if the act by which the death is caused is done with the intention of causing death;

(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused; 9

(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(d) if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid." [15] Now, as alluded to earlier, the learned Judge had on two occasions ruled that the evidence established only a charge for culpable homicide and not murder. The reasons for coming to this conclusion were also set out earlier. The learned DPP had urged upon us that the conviction should be for the offence of murder under s. 302 of the Penal Code as the learned Judge had failed to sufficiently consider the overwhelming evidence establishing the necessary intention under s. 300 of the Penal Code. [16] In this context, we agreed that learned Judge was in error in failing to consider various compelling evidence adduced by the prosecution. Firstly, there was the evidence of the post-mortem report on the deceased (Exhibit P60 at pages 187-192 of Appeal Record Vol 3) and the court 10 testimony of the pathologist SP14. That post-mortem report concluded as follows: "Postmortem examination revealed multiple stabbed wounds on the body which had penetrated internally to cause injuries namely to the rib cage, pericardium and heart, diaphragm, stomach, liver and small intestines which had led to his death. These stabbed wounds to the body were consistent with infliction by a sharp, penetrating object and was of homicidal in manner. ... In my opinion, the cause of death is attributable to the multiple stabbed wounds to the body as sustained by the deceased." [17] It is a fundamental principle in criminal law that the burden of proving any criminal charge is on the prosecution throughout the case and never shifts to an accused person. If the prosecution fails to discharge this burden, the case made out may be one of culpable homicide not amounting to murder as depicted in s. 299 of the Penal Code. So the question before us, and indeed the trial Judge, was whether the elements of the charge of murder under s. 300 of the Penal Code had been established beyond reasonable doubt. [18] In the instant case, taking into account the multiple stab wounds inflicted on vital organs in the body, there can be little doubt that there was 11 at least the intention to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. In fact, the bodily injury caused was such that the respondent knew would cause the death of the deceased. So, intention under elements (b) and (c) of s. 300 of the Penal Code was proved. [19] Secondly, the conduct of the respondent on the day of the incident bears out his intention to inflict those injuries. He had brought a knife with him on the day of the incident. There was some discrepancy as to whether the said knife was always in the motor-cycle or whether he had specifically taken the knife from his house on that fateful day. Giving the respondent the benefit of any doubt, there was no reason for him to have the knife in his hand when the argument took place between him and the deceased. [20] What is also compelling is that after having stabbed the deceased multiple times, the respondent had also taken the valuables of the deceased. He had admitted in his evidence to taking the wallet, gold chain and a Sony Ericson mobile phone from the deceased after he had killed him. This gold chain was subsequently given to SP19 who then pawned it for money. The respondent also admitted that after taking the wallet from 12 the deceased, he had thrown away the identity card and driving licence and kept the money in it. This was all conduct relevant under s. 8 of the Evidence Act 1950 to establish motive and preparation for the crime. With respect, there was clearly insufficient consideration of all these matters by the learned Judge. [21] Now, the learned Judge appeared to place much emphasis on the defence of grave and sudden provocation as provided by Exception 1 to s. 300 of the Penal Code. The evidence was that the respondent was gravely provoked by the words used by the deceased “susah berurusan dengan orang Melayu” and “Melayu bangsat”. The words “Melayu bangsat” did not appear in the police statement of the respondent (D83) and were only revealed by him in his evidence. Even giving the respondent the benefit of the doubt, there was no reason for the respondent to lose his self-control as the deceased was only trying to recover the debt that was owed to him. The deceased was also unarmed on that fateful day. [22] The law on what amounts to grave and sudden provocation is well-settled. In Lorensus Tukan v PP [1988] 1 CLJ (Rep) 162, the Supreme Court through the judgment of George Seah SCJ observed (at p. 165): 13 "The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control [see Nanavati v State of Maharashtra [1962] AIR SC 602]”. [23] So, in order to set up provocation as a defence to reduce the offence of murder to one of culpable homicide, it is necessary to show such grave and sudden provocation as would cause any reasonable person to lose his or her self-control as provided by Exception 1 to s. 300 of the Penal Code. In this way, a mere statement by an accused that he lost his self-control is insufficient. The test of gravity is an objective one. So the test is: would such provocation cause a reasonable man to lose his self-control. By this test, an “unusually excitable or pugnacious individual” is excluded (see Mancini v Director of Public Prosecutions (1942) AC 1). So would a person who is unusually sensitive or is hot tempered. The law must be applied evenly as otherwise persons who are hot tempered or have a thin skin would always escape the heavier punishment. [24] Nevertheless, what is grave to the point of causing loss of self-control is a question of fact which depends on the facts and circumstances of each 14 case. Even so, the type and manner of retaliation must not be disproportionate to the provocation. So, for example, bringing a knife and stabbing someone multiple times after a mere verbal spat would be thoroughly disproportionate. [25] Reverting to the instant appeal, it appeared to us that the action of the respondent was certainly out of proportion to the gravity of the provocation. The nature of the provocation was at most mere verbal abuse for a debt due. Such provocation would not be met by any reasonable person with multiple stab wounds to vital organs of the body. In our considered view, the actions of the respondent must fail the “grave and sudden” requirement of provocation. The response of the respondent to mere verbal abuse, and that too by an unarmed man, informed us that he was a callous man with a total disregard of human life. [26] In our respectful view, the learned Judge was in error in holding that grave and sudden provocation had been established. The learned Judge may have been persuaded by the possibility that the respondent’s decision making ability was impaired as he was under the influence of drugs at the material time. However, as we had earlier reiterated, the law must be 15 applied evenly. In any case, what is noteworthy is that the respondent had the presence of mind to scoot away with the belongings of the deceased after killing him. He was also able to decide to throw away the identification card and driving licence of the deceased. In our view, the respondent was not under any impairment of his thinking ability. His response that he panicked rang hollow after he made the conscious decision of taking the valuables of the person he had just killed. [27] Now, the learned Judge also noted the impressive manner in which the respondent gave evidence in court and especially the way in which he answered questions without hesitation during cross-examination. In short, the demeanour of the respondent in the witness box suggested to the learned Judge that he was a truthful witness. [28] In this regard, we must hasten to observe that demeanour in the courtroom is not always a reliable guide to credibility. A consummate liar may be completely calm and unruffled by any stress during cross-examination. And there is usually some delay between arrest and trial. Hence there is plenty of time to prepare and rehearse answers to possible questions. 16 [29] On the other hand, an honest but anxious witness terrified of being disbelieved would be nervous when giving answers in the courtroom thus projecting a shaky demeanour. To add to the adversity, advocates are often quick to take advantage of such a witness to manipulate demeanour and destroy the credibility of an otherwise truthful witness. This is not helped by the sometimes tense atmosphere in the courtroom which can also by itself engender anxiety in any witness and more so one with poor education or limited intelligence. The unfortunate result is that such a witness may be wrongly perceived by the judge to be untruthful. [30] So, a judge in a courtroom is in no position to place complete faith in demeanour as a guide to honesty. It would be far better to determine the truthfulness of a witness by a critical examination of his testimony with the whole of the evidence adduced at the trial. His testimony may be consistent or inconsistent with the established facts and circumstances or may be corroborated by other evidence at the trial. Certainly demeanour should be the least weighty element in determining credibility (see Lee Kwai Heong & Anor v PP [2006] 1 CLJ 1043). 17 [31] In the instant case, we did not think that the demeanour of the respondent as noted by the learned Judge was sufficient to override the overwhelming and uncontroverted evidence against the respondent. As alluded to earlier, the respondent had committed a vile and reprehensible act with the requisite intention to cause death. Conclusion [32] In the circumstances, and for the reasons we have given, we were of the view that there were merits in the appeal. The decision of the High Court was against the weight of evidence. Having scrutinized the whole of the evidence, and for the reasons provided, a conviction for murder under s. 302 of the Penal Code was warranted. Accordingly, we set aside the conviction and sentence for culpable homicide not amounting to murder and substituted it with a conviction for murder under s. 302 of the Penal Code. As a necessary consequence, the respondent was sentenced to death as required by law. 18 Dated: 09 May 2019 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel / Solicitors: For the Appellant: Nik Syahril Nik Ab Rahman Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia For the Respondent: Hj Azrul Zulkifli Stork with Fahmi Sulaiman (M/s Azharudin & Associates)